Home of the Free Culture, Land of the Brave Pirate

When I’m doing work, I like listening to classical music. One of my first exposures to it was the Disney movie Fantasia. Like many early Disney movies, it was quite revolutionary for its time, mixing animated scenes with famous classical scores. Sometimes I like watching clips from the movie as a study break, and the other day I wanted to watch the clip scored to “Night on Bald Mountain.” Here’s what the first video result on YouTube looked like:


Oh well. Maybe I can view the clip of unicorns dancing to Beethoven’s Sixth Symphony:


No dice.

However, I did come across this masterpiece:

Yes, this is the “Candlelight mix” of Cascada’s “Everytime We Touch” set to the animation from Fantasia.

It’s understandable Disney wants to protect its copyrights and clearly fought to do so with YouTube. So why didn’t they successfully take down the video “Emimi225″ created? After all, the video includes previously copyrighted music and animation. Part of the reason for this is fair use. Emimi225 was able to freely remix previously created cultural icons to create their own cultural output because this country inherently has a free culture.

Lawrence Lessig would be happy.

Ten years ago Lessig, a legal scholar currently at Harvard, argued in his book Free Culture that the ability of the Emimi225s of the world to create works such as the mashup clip had recently become severely limited due to a strengthening of copyright law — in favor of major media companies that hold these copyrights, not creators like Emimi225. This change, Lessig wrote, flew in the face of our nation’s strong history of free culture. “The current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law.” (page 141). Instead of protecting the creativity of the “Emimi225s” of the country, the law has instead increasingly benefited big corporations (page 8). To combat this, Lessig pleads that “the Internet should at least force us to rethink the conditions under which the law of copyright automatically applies” (page 140). Though some of Lessig’s argument is now outdated, he still paints a fairly accurate (as well as bleak) picture.

According to Lessig, “free culture” has always been a central aspect of American society. Article I Section 8 of the Constitution enumerates the powers of Congress, including the power to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” specifically in order “to promote the Progress of Science and useful Arts.” However, as Lessig writes, over the course of the second half of the 20th century, copyright law became significantly more restrictive, as “limited Times” have been extended to upwards of 100 years, “Authors and Inventors” have became simply “creators” and “Writings and Discoveries” have became any kind of created material, including music, architecture and software.

Lessig argued against this erosion of free culture in the Supreme Court case, Eldred vs. Ashcroft, 537 US 186 (2003). That case challenged the constitutionality of the Sonny Bono Copyright Term Extension Act, which effectively froze copyrighted works entering the public domain by extending their copyrights another 20 years to the standard of life of the author plus 70 years. Lessig’s main argument was that this violated the “Progress” clause of Article I Section 8 by effectively circumventing the “limited Times” requirement. Unfortunately, the court upheld the law by a vote of 7-2, and Lessig blames the result on his mistake of not focusing on the Act’s potential to stifle creativity. Lessig believed that instead of fear mongering, he should have tried to persuade the justices that the Sonny Bono Act was unconstitutional on logical, not emotional grounds (see pages 228-248).

Lessig believes blindly renewing copyrights will stifle creativity. He argues that we’re all “pirates” who “steal” from previously created culture, and always have been. For example, Walt Disney himself, whose copyright heirs block me from watching Fantasia, used the Brothers Grimm, and other “public domain” tales, as inspiration for his movies. “Stealing” the central themes and characters of these works (if not all the surprisingly gruesome plot details), Disney built an empire of impressive animated cartoons that far outstripped the competition. In fact, Lessig terms this type of cultural stealing/inspiration as “Walt Disney Creativity” or “a form of expression and genius that builds upon the culture around us and makes something different” (page 24). He also explores how the “norm of free culture has, until recently and except within totalitarian nations, been broadly exploited and [been] quite universal,” using as an example Japan’s strong tradition of unauthorized versions of popular graphic novels. The key difference in Japanese culture, as opposed to ours, is a lack of lawyers and corporations willing to use lawyers for litigation (pages 25, 27-8). Following Lessig’s logic, preventing “Walt Disney Creativity” — by extending copyright for so long — will halt “progress of science and useful arts.”

Lessig published his book ten years ago, so some things are out of date. For example, his discussion of fair use is under developed, especially considering there has been an increased recognition of fair use in the courts since 2004 (See Aufderheide, P. and Jaszi, P. Reclaiming Fair Use: How to Put Balance Back in Copyright). In addition, there is no discussion of Social Media. With its 2004 publication date, Free Culture is exactly as old as Facebook, and predates YouTube by one year, Twitter by two years and Instragram by six. With so much “pirating” and sharing on these social networks, one wonders how Lessig would view them. After all he views circa 2004 blogs as “arguably the most important form of unchoreographed public discourse that we have.” (An early example of blogs directly impacting society is their exposure of Trent Lott’s history of “misspeaking” about segregation (page 44).)

Still, as an early manifesto detailing free culture in the mid-2000s, Lessig’s Free Culture is relevant to appreciating Internet culture today. Brewster Kahle, who is a major internet activist, receives an entire chapter in Lessig’s book. Described as the “Andrew Carnegie of the Internet,” Kahle notes that restriction of creativity Lessig wished he had argued more clearly in the Eldred case is “No way to run a culture” (page 47). Lessig applauds Kahle’s Internet Archive project, stating that without IA’s attempt to archive and preserve the Internet, websites will function like the retroactively updated newspapers of 1984 that were constantly changed to reflect the current political climate, resulting in historical memory loss (pages 108-9).

In the end, Free Culture still holds up as an important concept worth defending, although 10 years after its publication it could use some updating. Lessig has since focused on calling a second Constitutional Convention. So he may not update Free Culture very soon. Perhaps some “pirate” could exercise his or her “free culture” right and adapt a 2014 version.


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About Zach Klitzman

A History Grad student at American University

3 responses to “Home of the Free Culture, Land of the Brave Pirate”

  1. drdankerr says :

    Fantastic and timely review! Well done, and I love the embeds.

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